This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Steven R. Johnson, petitioner,
Filed December 13, 2005
Anoka County District Court
File No. K6-96-11630
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Mike Hatch, Attorney General,
Robert M.A. Johnson,
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the
denial of a postconviction petition challenging a 1996 sentence for aiding and
abetting first-degree criminal sexual conduct, appellant Steven Johnson argues
that the upward durational departure, based on aggravating factors found by the
district court, violated his right to a jury trial under Blakely v. Washington, 542
Appellant Steven Johnson pleaded guilty in 1996 to charges of aiding and abetting first-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(c), .05 (1996). The district court sentenced him to 206 months in prison, a double durational departure from the presumptive guidelines sentence. The district court found a number of aggravating factors in the commission of the offense including: multiple acts of penetration, acts of penetration in the presence of another, physical restraint of the victim resulting in physical injury, references to a weapon, significant advance planning, invasion of the victim’s zone of privacy, particular cruelty by forcing the victim to be nude in 50-degree temperatures, and the length of the assault. Appellant did not file a direct appeal.
Nearly eight years later, Johnson
filed a petition for postconviction relief, alleging that his Sixth Amendment
rights had been violated when the district court made findings of fact to
support the departure when he had not waived his right to a jury trial on those
issues. At Johnson’s request, a public
defender was appointed to represent him, and defense counsel filed a memorandum
of law arguing that Blakely v. Washington,
D E C I S I O N
petition for postconviction relief is a collateral attack on a judgment which
carries a presumption of regularity and which, therefore, cannot be lightly set
aside.” Pederson v. State, 649
N.W.2d 161, 163 (
Appellant argues that his sentence
is unconstitutional because it violates his right to have the facts authorizing
an upward sentencing departure found by a jury under Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004). Blakely
followed Apprendi v.
pleaded guilty and was sentenced in 1996. He did not file a direct appeal. Thus, his sentence became final nearly eight
years before the decision in Blakely. See Minn.
R. Crim. P. 28.02, subd. 4(3) (mandating that a criminal defendant appeal
within 90 days after entry of judgment); see
also O’Meara v. State, 679 N.W.2d 334, 339 (
Because appellant’s sentence was final before the ruling in Blakely, and because Blakely does not apply retroactively, appellant is not entitled to benefit from the rule in Blakely, and the district court correctly applied the law in denying his request for postconviction relief.